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[2026] ACAT 28
ACT Civil and Administrative Tribunal
2026-06-09
Original judgment source is linked above.
Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
YE v RALSTON (Appeal) [2026] ACAT 28
AA 26/2025 (XD 1193/2024)
Catchwords: APPEAL – motorcycle collision with pedestrian – whether tribunal erred in finding that the applicant “suddenly ran into the road” without sufficient objective or corroborative evidence – whether the tribunal failed to apply the correct legal standard of duty of care under the Civil Law (Wrongs) Act 2002 – whether the tribunal failed to ensure procedural fairness – whether the tribunal failed to consider the applicant’s vulnerability – whether the tribunal gave disproportionate weight to the respondent’s oral testimony
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 8 Civil Law (Wrongs) Act 2002 ss 40, 42, 43, 44, 45, 46, 47 Evidence Act 2011 Legislation Act 2001
Cases cited: Briginshaw v Briginshaw [1938] HCA 34 Daly v Liverpool Corporation [1939] 2 All Er 142 Dugan v Chan [2013] NSWCA 182 He v Qin & Ors [2021] ACAT 129 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 Sarbandi v Sharif [2017] ACAT 57 Schwedler v Secretary, Department of Health [2026] NSWCATAP 21
Tribunal: Presidential Member T Warwick Date of Orders: 28 May 2026 Date of Reasons for Decision: 28 May 2026 Date of Publication: 9 June 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 26/2025
BETWEEN:
ZICHEN YE Appellant
AND:
JASON RALSTON Respondent
TRIBUNAL: Presidential Member T Warwick DATE: 28 May 2026
ORDER The Tribunal orders that:
……………………………….. Presidential Member T Warwick REASONS FOR DECISION
This is an appeal from a decision by the Original Tribunal delivered on 5 March
The appellant is Zichen Ye (Mr Ye), who was the applicant before the Original
Tribunal.
respondent before the Original Tribunal.
decision and reasons for decision in this matter. The delay is attributable to the
workload of the tribunal member. The responsibility for the delay is mine.
Background
at about 6:25 pm (the collision). At the time of the collision, Mr Ye was a student.
By 2024, he had completed a Master of Business.
property damage. Mr Ye claimed compensation for personal injuries under the
relevant motor accidents injury scheme. Mr Ralston facilitated that claim, without
any admission of liability.
Centre, operated by Legal Aid ACT. On 26 July 2023, the Youth Law Centre sent
a Letter of Demand to the respondent seeking payment of $8,891.95 in respect of
property damage allegedly caused in the collision. On 4 August 2024, the
respondent rejected the demand.
the respondent. On the same day, the respondent rejected the demand.
allegedly caused in the collision. Mr Ralston denies any liability in the property
claim.
to any inference that Mr Ralston admits liability, or is liable, in the present
property claim.
The intersection
Valley. Traffic that is northbound on JDG will pass by the suburbs of Denman
Prospect and Whitlam, before joining other major roads to travel to Belconnen or
the City. Traffic that is southbound on JDG will join other major roads to travel
to Weston Creek and further south.
southbound lanes by long traffic islands with grass and trees. At intersections, the
lanes are separated by concrete and gravel traffic islands.
collector road for the suburb of Coombs. Steve Irwin Avenue is a collector road
for the suburb of Wright. Fred Daly Avenue and Steve Irwin Avenue intersect
with JGD at the same intersection, from opposite sides. The intersection is
controlled by traffic lights. The collision occurred at this intersection (the
relevant intersection).
alighted from the bus, and walked along the footpath to the relevant intersection.
southbound on JGD, approaching the relevant intersection.
the 50 metres approaching the intersection, JGD comprised (from left to right) –
(a) Slip lane – for traffic turning left;
(b) Bicycle Lane;
(c) Bus Lane;
(d) Vehicle Lane 1 – the general traffic lane closest to the outside boundary of
the road; (e) Vehicle Lane 2 – the general traffic lane next away from the outside
boundary; and
(f) Vehicle Lane 3 – right turn lane.
the intersection, JGD is a mirror image, comprising the same six lanes (from left
to right) – slip lane, bicycle lane, bus lane and vehicle lanes 1, 2 and right turn
lane.
the bicycle lane in each direction. And a large middle pedestrian island is located
between the northbound and the southbound lanes.
at the intersection. From the perspective of Mr Ralston on his motorcycle, Mr Ye
was crossing JGD, and crossing the path of the motorcycle, from right to left.
Shortly before the collision, another pedestrian, Mr Namen crossed JGD.
Immediately before the collision, Mr Ye moved off the middle pedestrian island,
and into the southbound lanes.
Avenue, waiting to turn right into JGD, and then to proceed northbound.
Ralston estimates that the collision occurred in about Vehicle Lane 2, that is,
about two-three metres from the middle pedestrian island. Mr Ye estimates that
the collision occurred in about Vehicle Lane 1, or the bus lane, that is, about five-
six metres from the middle pedestrian island.
Overview of the proceedings before the original tribunal
proceedings XD 1193 of 2024. In very general terms, Mr Ye claimed $6,000
compensation for damage to various items of property, plus the tribunal filing fee
and interest.
respondent denied liability.
made orders and directions including a timetable for the parties to file materials
in preparation for hearing.
was not resolved.
claiming $5,819.69 for property damage, plus the tribunal filing fee and interest.
On 22 January 2025, the hearing commenced before the Original Tribunal.
On 5 March 2025, the hearing continued. On the same day, the Original Tribunal
delivered their decision.
The decision of the Original Tribunal
1
MEMBER: … I am finding that Mr Ye, the applicant, has not established negligence on the part of Mr Ralston, so I am going to dismiss his claim, but I will take some time to step through and explain how I have reached that conclusion.
So I should also mention that I've had the benefit of - I arranged for a transcript to be made of the hearing that we had on 22 January, so I've had the opportunity to read through that transcript and refresh my memory of the evidence that was given that day. …
MEMBER: So I'll briefly summarise the evidence as I've understood it. The applicant, Mr Ye, gave evidence that he got off the bus with Mr Namen and was crossing the road, a dual carriageway. The evidence was that the pedestrian light was green when he began crossing on the far side of the road. He reached the middle. As he reached the middle, or around that time, the pedestrian light switched to flashing red, but did not last long, and he continued crossing the road and the accident happened when he reached about the middle of the road, which is consistent with everybody's evidence.
1 Transcript of hearing dated 5 March 2025 page 20 line 32 – page 23 line 15. Mr Morel’s name is misspelt at various places in the transcript, which has been amended to reflect the correct spelling. I'll briefly discuss what Mr Namen might or might not have added to the case. Mr Namen was not called as a witness and no one was able to contact him and able to secure his attendance. We have a text message from Mr Namen, and the text message indicates that he did not see the accident, so I don't think Mr Namen could have assisted me in any event.
So Mr Ralston gave evidence for himself. His evidence was that he was proceeding towards the intersection on his motorbike, facing a green light - on his scooter, I suppose one might say - and he was travelling around 70 kilometres an hour. When he was around the 100 metres out from the intersection he saw a pedestrian, who we now know to be Mr Namen, cross the road out, and in response to seeing that pedestrian cross the road some distance in front of him, he eased off on the throttle of his scooter and reduced his speed to about 60 kilometres an hour. As he came into the intersection, another pedestrian, which we now know to be Mr Ye, stepped out in front of him and reached the middle of the road. He swerved but was unable to avoid the accident and struck Mr Ye.
Mr Morel gave evidence. Mr Morel says that he was on the cross street of the intersection, facing towards the - you know, across it, and he was looking - happened to be looking towards the pedestrian crossing and saw Mr Namen cross out, or the first pedestrian cross out, and when the motorcyclist was some distance away from the intersection, and consistent with Mr Ralston's evidence, he estimated about 100 metres, and he said that the - and he noticed that the motorcycle coming towards the intersection was travelling at about the normal speed. Of course, he couldn't see the actual speed.
His attention having been drawn by seeing the first pedestrian cross, he was watching when he says that the second pedestrian stepped suddenly out in front of the oncoming motorcycle in a manner that made it impossible for the motorcyclist to avoid the accident and an accident occurred. He saw the motorcycle swerve, but not avoid. So his evidence was very consistent with Mr Ralston's.
The applicant, Mr Ye, cross-examined Mr Morel substantially and asked him lots of questions. I think it's fair to say that by the end of the cross-examination, Mr Morel did not waver in his evidence and remained constant in his account, consistent with what I have just described. …
MEMBER: So, considering the evidence of the applicant, and also the evidence of the respondent and Mr Morel, I find it more likely than not that the accident took place in the way as described by Mr Ralston, the applicant, and Mr Morel, which is to say that I find it more likely, on the basis of the evidence, that the applicant stepped out suddenly in front of Mr Ralston in a manner that made it impossible for him to avoid the accident.
I need to address the question about whether Mr - the submission was made that the respondent, Mr Ralston, should have slowed down more when he saw the pedestrian cross. … MEMBER: So having seen the first pedestrian cross out in front of him, Mr Ralston did slow down a little bit. There was no basis at that point for him to consider that another pedestrian may have come out. There was a bit of difference in the evidence about whether or not Mr Ralston did or did not see, or what I should find about whether or not he saw Mr Ye on the side of the road. I don't need to make a finding about that, because I do not accept that, in the circumstances facing him, that Mr Ralston should have slowed down further, or there was any need for him to do so. There was no reason to expect that another pedestrian would come out in front of him when he was facing a green light.
In relation to the law, both of the parties have cited the usual cases relating to motor vehicle accidents and negligence, of which there's very well-established case law. In particular, the applicant cites the Daly v Liverpool case, which is authority for the proposition that there's a very high standard of care on motorists - which in this case would include motorcyclists - in relation to taking care for pedestrians crossing the road and being aware that pedestrians will be in the environment, and so you cannot completely discard the fact that there may be - a person might - you know, pedestrians will be interacting with the road.
The respondent, Mr Ralston, cites the very relevant ACT case of Lee v McGrath, which relates to a quite similar case where pedestrians crossed ahead of a motorist, and the court found in that case that, in quite similar circumstances, the motorist was not required to slow down because the danger had passed, and I find that those circumstances - the circumstances of this case are indeed very similar to that.
Mr Ralston did see a pedestrian cross in front of him and responded appropriately by slowing down a little bit, but the danger of that pedestrian being on the road had passed and there was no reason for him to slow down further. So, at the risk of repeating myself, I don't think that, in the circumstances, reasonable care required further slowing down in a way that would have been able to avoid the accident.
To succeed in this case, the applicant needs to show that the respondent was negligent, and the applicant's submission correctly points out that the four elements of that are that there's a duty of care, there's a breach of that duty, that the breach caused the accident and the accident caused the damage claimed, in this case, the damage to the goods and the possessions of Mr Ye, for which he's making a claim for compensation.
The existence of the duty of care is, of course, beyond any doubt, however, I am not satisfied on the balance of probabilities that it's more likely than not that there was a breach of the duty of care owed by Mr Ralston - and absolutely Mr Ralston owed a duty of care to all other users of the road, but I am not satisfied that there was a breach of that duty to Mr Ye, the pedestrian on the road on this occasion. So, in those circumstances, I am not satisfied that the applicant has made out his case and I dismiss his application. Relevant legislation and legal principles on appeal
The function of the tribunal on appeal
In He v Qin & Ors [2021] ACAT 129 (He v Qin), the Tribunal discussed the 2 function of the tribunal on appeal, as follows (citations omitted).
Pursuant to section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), a party to an original application may appeal to the tribunal on a question of fact or law. Pursuant to section 82(1), an appeal may be dealt with as a new application, or as a review of the original decision, as the tribunal considers appropriate. The former is what lawyers refer to as a ‘hearing de novo’ and the latter as a ‘rehearing’. 42. By orders made on 8 February 2021, the appeal is to proceed as a review of the original decision unless the appeal tribunal orders otherwise. The appeal tribunal did not order otherwise. For the reasons set out below at [56]-[65], the application was dealt with as a rehearing on the evidence before the original tribunal. 43. In V v Elringtons Pty Ltd, the appeal tribunal’s role in a rehearing was summarised as follows (omitting citations): In Excel Intelligent Pty Ltd v Thompson, the Tribunal considered the judicial authorities discussing the role of an appeal court or tribunal. It is not necessary to repeat the full discussion in that decision. However, it is relevant to note the following propositions drawn from judgments about the nature of a rehearing: (a) An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong. (b) Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below (or an original tribunal). (c) The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
2 He v Qin & Ors [2021] ACAT 129 at [41]-[47] (d) The appellate court (or an appeal tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal). (e) In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand. 44. In short, an appellant must show that the original tribunal committed an error of fact or law that was material to the result. 45. An appellant must do more than contend that the decision of the original tribunal was wrong and that there should be a different result. A rehearing does not give an appellant the opportunity to have a second run at the target, as if the original decision had never been made, simply because the appellant is dissatisfied with the result. The onus is on an appellant to show, specifically, where the original tribunal went wrong. Normally, that requires an appellant to point to an error of fact or an error of law in the written or oral reasons for decision of the original tribunal and to explain to the appeal tribunal how that error affected the result. 46. If an appellant says that the original tribunal made an error of fact, the appellant must take the appeal tribunal to: (a) the evidence before the original tribunal to demonstrate the error; or (b) if the appeal tribunal gives leave for the appellant to rely on further evidence, the evidence that the appellant says demonstrates the error, and the appellant must explain what the correct finding of fact should be, based on that evidence. 47. It is not enough for an appellant to say that a different inference of fact should have been made when all the evidence is weighed in the balance. The appellant must show that a material finding of fact was clearly wrong.
material finding of fact made by the Original Tribunal is clearly wrong.
Document Review
attachments, filed on 13 June 2025, marked Exhibit 1. Similarly, the respondent
filed an Index on 4 June 2025.
before the Original Tribunal. Medical reports
medical imaging. The Appeal Tribunal will not detail the contents of these
reports, but observes that Mr Ye suffered a serious fracture to his left lower leg,
and scrapes and bruising to various parts of his body. The fracture did not heal
without complications.
AFP Crash Report made by Mr Ralston on 23 April 2023 at 8:01 pm.
Describe how the crash occurred The crash occurred on the corner … at aprox 6:20 pm. I was heading east towards Weston at the time for dinner on my motorcycle (a Piagilo BV 350 cc scooter – rego 96992). Coming up to the intersection I had a green light and was continuing through when one individual (name was given as Naman – 04211 870 115) ran across the road in front of me. I did not notice a second individual has also ran across the road a few seconds behind him (this was the person I hit – he spoke limited English and I was unable to find out his name but did provide is contact number of 0411 707 004) until a second before impact. In the second I had attempted to brake and swerve left (into a bus lane), however my motorcycle ran over his most forward foot (and may have hit his arm). I was able to stay on my bike and emergency park in the bus lane a few metres down the road. I immediately attended the person that I had hit and called an ambulance. Naman kept them company while I moved my scooter back around the block out of the bus lane and parked it in Fred Daly Ave after which I returned back. I stayed with the individual I hit until the fire brigade arrived and the ambulance arrived on scene, upon which they advised I was no longer needed and should go back home. There was a witness who was waiting to turn right from Fred Daly Ave into John Gorton (Jason 0425 135 982) who witnessed the event and may also have dashcam footage he can provide. Naman also said he could be contacted as an additional witness although it occurred behind him. I provided copies of my driver licence number, registration and contact details to all parties involved. There is also a police camera mounted on that intersection. Nature of injuries My motorcycle ran over his front most foot and mostly likely fractured or broke it (per ambulance discussion). Details of distraction Naman (a nearby pedestrian) had run across the road while I had a green light and my focus had been drawn to him as he ran across. This likely distracted me from seeing the second pedestrian a few seconds behind him. AFP Crash Report made on behalf of Mr Ye on 23 April 2023 at 9:12 pm
Describe how the crash occurred I was walking down the intersection … and got hit by a motor cycle at full speed. Driver name is Jason Benjamin Ralston. There was two witnesses nearby and one of them was crossing the road with me. Contact available by request. Nature of injuries Broken ankle. Details of damaged property A laptop completely broken, a thermal water bottle deformed, Apple watch scratched, a pair of sunglasses shattered.
SMS from Naman, received by the applicant on 7 May 2023 at 8:34 am
From my memory, accident was on the pedestrian way, I didn’t have a clear answer on who was at fault as I only noticed when the accident had already occurred. As for the exact position, it would on the middle of the pedestrian way on road going towards city. Hope this help and if you need any more 3 information, fell free to message me.
SMS from applicant to Naman, sent 7 ay 2023 at 10:49 am
Naman, thank you, I remember that we took off the bus together and I was following you cross the road, but I am not sure, I remember the traffic light is flashing turn to solid and when we crossed the road there is no any vehicles around the road so we walked through the road, in that night time it’s dark so I didn’t notice the motorcyclist I only heard a really loud engine noise when I at the middle of the pedestrian and I was trying to find out where is the noise had come then I fell down and my leg was broken, then I realised I was hit by a motorcycle and you came to me. So I’m suspect that 4 motorcyclist may over speeding.…
Email from the Youth Law Centre to the Applicant, sent on 5 May 2023 at 16:23.
meeting between them and the applicant in “dot point” format, including the
following points:
(a) You declared that you couldn’t remember exactly how the motorcycle got close to you and hit you.
3 Filed by applicant on 19 December 2024 4 Filed by applicant on 19 December 2024 (b) You said words to the effect “I’ve checked before I cross that there 5 are no cars around” and “the red light was still flashing”.
Statement of Zichen Ye, dated 27 July 2023, given to NRMA investigator
My view and vision were clear and unobstructed at the time of the collision. … I was not feeling tired or unwell … the weather conditions were fine … the road was dry … visibility at the time of the collision was good. It was night time and it was dark, but the area was well lit by streetlights from memory shortly after the collision occurred. I do not recall what time the streetlights turned on. I do not recall if the motor scooter involved has a headlight turned on … At the location of the collision, the direction John Gorton Drive runs in is approximately north-west and south-east. The accident happened directly on the pedestrian crossing located on the north-western side of the intersection. It happened in front of the south-east bound lanes. I am very familiar with the location … as I travel in that area frequently. The traffic density was minimal … I was a pedestrian … I was alone … I was not wearing any headwear. I was not wearing any type of earphones or headphones. I was involved in a collision involving a motor scooter. The scooter rider was Jason Ralston. … He was alone with no passenger. … … Earlier that day, I went to Hope Church at ANU and after that I studied at Chifley Library before travelling towards Club Lime. I took the bus to Coombs from ANU. I exited the bus at the bus stop on John Gorton Drive after Steve Irwin Ave. I think 3-4 people exited the bus at that stop. Two people crossed the road directly near the bus stop and not on the crossing. I habitually walked towards my home and I walked north-west several metres on the footpath. I then remembered I wanted to go to Club Lime Coombs gym. I turned around on the footpath and walked south-east and I walked about 50 metres on the footpath to the marked pedestrian crossing at the intersection. There was one other pedestrian walking in front of me who had previously exited the bus also. … his name was Naman. I do not know him personally … I walked to the traffic lights pedestrian crossing at the intersection with Steve Irwin Ave and Fred Daly Ave. The pedestrian walk signal turned green and I started walking east on the pedestrian crossing. Naman crossed the road a short distance in front of me. The pedestrian signal started flashing yellow when I was around half-way across the crossing. I am not sure of the crossing signal when I was hit. Naman was walking and not running and I was also walking and not running when crossing the road.
5 Filed by applicant on 19 December 2024 I remember there were no vehicles around at the time of the incident so I was walking slowly. I had looked around before crossing and when crossing and I did not see any vehicles or headlights nearby. When I was nearing the end of the crossing, the incident suddenly occurred. I suddenly heard a very loud engine noise of a vehicle near me when I was walking on the crossing. I did not see the vehicle coming before the incident. I was confused where the noise came from and I looked around but I could not see the vehicle approaching. I saw a normal amount of traffic far away and then I suddenly hit by the motor scooter. As I did not see the motor scooter approaching, I assume it was travelling very fast. I do not know what speed it was travelling at. … The incident happened so suddenly and I had no chance to take evasive action to avoid the collision. I looked and I saw the motor scooter braking after the incident and it took a long distance for it to brake and stop, it was at least 50 metres away and it stopped on the other side of the intersection. It was only in that moment I realised I was hit by a motor scooter. I guess it was travelling at high speed due to the distance it took to stop. As a result of the impact, my lower left leg was hit by the motor scooter. I fell and I sustained grazes on my body, left knee and elbow. I was propelled about 3-5 metres and I landed on the road just after the crossing. The force of the impact was heavy and hard, I felt a large force on my body. The rider of the motor scooter came over to me after the incident after about 5 minutes … He asked me if I was okay … He called an ambulance. He said he needed to move his motor scooter back to where the incident happened. About 10 minutes later, he came back with his motorcycle. I cannot recall if the motor scooter rider ever admitted liability but he said sorry to me. … I prepared an online police crash report following the incident but police have not interviewed me formally. … In the twelve hours prior to the collision, I had not had any alcohol, illicit drugs, or prescription medication. As a result of the collision, my left ankle sustained a serious bimalleolar fracture, I sustained extensive abrasions around my left knee, elbow and body, and my mental health has been severely affected. I believe the rider of the motor scooter … was completely at fault for the collision. I was on the pedestrian crossing and I had the green walk signal 6 when I started crossing.
Email from the respondent to the Youth Law Centre, sent on 4 August 2023 at 12:20 pm, in response to a letter of demand.
… Mr Ye’s actions were directly responsible for the accident occurring … The accident (and associated property damage) were a direct result of Mr Ye’s actions to walk onto the road while he had a red pedestrian signal
6 Extracts from statement by applicant to NRMA at [14]-[53] (jaywalking) and without checking for oncoming traffic, resulting in him stepping directly into the path of my motorcycle.
During the accident on 23 April 2023, I was driving my motorcycle south-east along John Gorton Drive towards Weston and had a green light to proceed through the intersection with Fred Daly Avenue. This light had remained green for some time as I approached the intersection and had not recently changed.
Unfortunately, Mr Ye was not paying attention and walked directly onto the road (while having a red pedestrian signal) and stepped directly in front of my motorcycle. I only had a second before the impact to emergency brake and swerve to the left which resulted in my only running over Mr Ye’s foot and not resulting in a much more serious accident. Had Mr Ye taken the time to check both ways and to follow the traffic signalling (and waited for the green pedestrian light to cross) the accident would never have occurred. I was not speeding at the time of the accident and made all reasonable efforts to avoid the accident.
Table under heading “Property Lost List”, prepared by applicant
item, and value of item at date of collision.
Report by Dr Wan, clinical psychologist, New Vision Psychology, dated 20 September 2024.
… Mr Ye recalled he had attended the church, went to the University library, and returned home in late afternoon on 23 April 2023. He went to the gym opposite to his living place in the evening. According to Mr ye, he followed other pedestrians to cross a main road with the pedestrian traffic light was green. He stopped at the pedestrian refuge to make sure the traffic was safe. When he was about to finish crossing the road, he heard a loud engine noise. A second later, he noticed himself fell down, and saw a motorcycle stopped on his right side. … Mr Ye started to experience intense pain … He 7 was sent to hospital by the ambulance. …
Statement by Zichen Ye, dated 18 November 2024.
On 23 April 2023, I was plan heading to Club Lime Coombs after study from ANU campus by take R10 bus towards Denman Prospect. I got off bus at John Gorton Dr/Steve Irwin Ave bus stop and toward to Fred Daly Ave. When I was crossing the road, I was involved in a motor vehicle accident at approximately 6:25 pm … Please refer to my witness statement prepared with NRMA, the respondent’s insurer, on 27 July 2023, which accurately reflects my recollection of the accident itself. …
7 Dr Wan at [14] Statement of Jason Ralston, the respondent, dated 12 October 2023 … I left my residence at Denman Prospect … on my Piaggio BV 350 motor scooter … I entered John Gorton Drive … and headed east along JGD toward Weston. The weather conditions at this time were clear … The road was in a dry condition and there was adequate lighting. There was only light vehicle traffic on the road. My scooter was in good working condition… I was wearing appropriate motor cycle riding gear including protective gloves, a leather jacket and a helmet) … I approached the (relevant) intersection … There was clear visibility into the intersection … as I approached the intersection (I was about 100 metres away) a male (located on a pedestrian island in the middle of JGD) looked both ways and ran across the road (while the pedestrian light was red and I had a green light). I later learned this man’s name was Naman. … Acting cautiously given Mr Naman’s actions, I had slowed my speed from the prescribed 70 kph speed limit to 60 kph … A second man had now entered the pedestrian island and was standing on the corner of the pedestrian island. I later learned this man’s name was Zichen Ye. As I came directly into the intersection, Mr Ye ran onto the road from the pedestrian island, directly into the path of my scooter. This action was unexpected and he had provided no indication he intended to come onto the road until he moved quickly in front of me. Having only a second in which I could react, I had no time to be able to sound my scooter horn. Instead, I yelled loudly to “watch out” as I emergency braked and swerved to the left to avoid a direct collision with Mr Ye. There was no indication that Mr Ye had looked both ways before crossing and he seemed unaware of his surroundings and the impeding danger. He did not have any reaction until after impact had occurred and did not undertake any actions to avoid the accident. As a result of my swerving manoeuvre, instead of a direct impact with Mr Ye, I instead made contact with his outstretched left leg. My scooter’s front wheel ran over Mr Ye’s ankle and Mr Ye was knocked over. The second after impact with Mr Ye, my first instinct was to keep the scooter upright and look at the intersection traffic lights, which still showed a green signal and that I had right of way. Despite still emergency braking and swerving heavily left, I was able to kept the scooter upright and did not fall off the scooter. … … I pulled my scooter into a nearby bus stop … a driver waiting on Fred Daly Avenue (who was waiting to turn right onto JGD) expressed concern at the incident and yelled out to ask if everyone was ok. … I would later 8 learn the man’s name was Jason Morel.
8 Filed by the respondent on 13 November 2024, extracts from [3] – [25] paragraphs Statement of Jason Morel dated 31 July 2023
… The incident occurred during the nighttime, and weather conditions were clear. As I was waiting at the traffic lights in my car, I saw a pedestrian attempting to cross the road. This pedestrian has been identified as Zichen Ye.Unfortunately, Mr Ye did not wait for the green pedestrian crossing light and did not look both ways before crossing. At the same time, a motorcyclist was approaching the intersection from JGD with a green light. The motorcyclist was following the speed limit and made efforts to avoid the accident, but Mr Ye suddenly stepped into the path of the motorcyclist, leaving no time to prevent the collision. The impact of the collision resulted in Mr Ye’s left shoe being flung into the air from being hit in the leg, and it was evident that he had badly injured his leg/foot due to the force of the impact as he was laying on the ground. Prior to this accident, another male pedestrian was also crossing the road in front of Mr Ye. However, the pedestrian light for this individual was also red but this individual acted cautiously, checked both ways to endure safety, and successfully crossed without incident, avoiding any vehicle. After the accident, the other male pedestrian immediately returned to assist Mr Ye and to help avoid any further injuries as there was other vehicles 9 approaching as the traffic light still remained green for the vehicles. …
The evidence at the hearing
Relevant extracts from the hearing before the Original Tribunal are below.
Mr Ye described the circumstances of the collision as follows:
MR YE: … so when Namen and I started crossing the road, so at that moment the traffic lights was green, so, but when we just only halfway to complete the crossing road, so then the traffic light start flashing, start flashing so that flashing yellow. Yes, so we tried to complete crossing the road. Unfortunately maybe around half a metre away from Fred Daly Avenue so the accident occurred. Yes, so when this accident occurred, so a motorcycle … the rider of motorbike, so then Mr Jason then actually significantly hurt my left leg, so that caused my left leg significant fractured so – and in my knees and elbows I also got bruises. At the same time, many – many belongings were damaged, so the belongings included a black bag for work and my mobile phone, my laptop, my glasses, my water bottle, so 10 all of those belongings are significantly damaged. … after the accident I can remember the (street lights) was on but before 11 the accident occurred I’m not sure whether they were on or off.
9 Filed by the respondent on 13 November 2024, extracts from paragraphs [3] – [8] 10 Transcript dated 22 January 2025 page 10 lines 6 – 18 11 Transcript dated 22 January 2025 page 11 lines 44 - 46
MR RALSTON I think I was around 100 to 150 metres away, I saw an individual run across the road when I could see the traffic light was green …
SENIOR MEMBER: so the light facing you?
12 MR RALSTON: correct, was green …
MR RALSTON: In response to that, the road, the speed for the road was 70 kilometres an hour. When I saw him dart out I slowed down to 60 kilometres an hour while I considered what was going on …
MR RALSTON: I kept proceeding through – down – down lane 2 of the road approaching the intersection. I did see Mr Ye standing on the – on the corner of the pedestrian crossing. He was just standing – standing there still, I assume – I assume waiting for the green pedestrian light, and so I continued on through lane 2 into – into the actual intersection itself just before I came into the intersection, so only a few metres, I’d say, Mr Ye 13 suddenly ran out directly in front of my motorcycle …
MR RALSTON: so when I saw him come out, I basically had a very split second to make a decision on what I was going to do. I made a decision to swerve, you know, at that point I was already braking but I made a decision to swerve left. The reason why I – I did that was, I was concerned that if I swerved right and came off my bike it was going to put me basically on the other side of the road where was other cars … I went to the left of the road 14
SENIOR MEMBER: Now, you have said that you saw somebody, a first person walk out was coming out on the road … where was that person at the time of the accident? Did you notice where they were?
15 MR RALSTON: They were already off, like, the entire pedestrian crossing …
MR RALSTON: I – I swerved to the left and I did run over Mr Ye’s left, like, foot, ankle area because as he was running it was outstretched … so I – my bike went in front of him. It ran over his leg …
MR RALSTON: … so I’ve – this is after – so I’ve just made contact with Mr Ye. I’m still swerving left at – at this point. The first action after the impact was, I looked back up at the traffic light to double check it was still
12 Transcript dated 22 January 2025 page 18 lines 32 - 42 13 Transcript dated 22 January 2025 page 20 lines 12 - 37 14 Transcript dated 22 January 2025 page 20 line 45 – page 21 line 9 15 Transcript dated 22 January 2025 page 23 lines 18 - 26 green and it was. … my scooter continued on its path and I ended up in a 16 – in a bus lane.
SENIOR MEMBER: … in paragraph 5 of your witness statement you have said that you saw Mr Ye step into the path of the motorcyclist and there was no time to prevent the collision.
MR MOREL: That is correct, yes. …
INTERPRETER FOR MR YE: before the accident occurred, so then where I was, so what’s my location at that moment?
MR MOREL: Before the accident occurred? He was in the middle of the pedestrian crossing, so there’s like double crossing and he was in the middle before it occurred, so he’d already crossed over one side and he was in the 17 middle before the accident happened …
MR MOREL: Mr Ye was in the middle of the crossing. The light was red but he was in the middle waiting to cross the road he’d just run across, so just where the middle of the crossing is. I don’t know the exact point on the 18 street, but I could – if you show me a map I could show it exactly. …
INTERPRETER FOR MR YE: So do you know what speed Mr Ralson was running at that moment? So why are you so sure that Mr Ralston didn’t speed up? …
MR MOREL: So, when the actual accident happened I was actually looking over that way. So when I saw the first pedestrian cross over, he was jaywalking obviously. He just ran across. He wasn’t – he just looked before he crossed, but the next, when I saw Mr Ye cross over, I could see the other – the motorbike was just driving at normal speed, so he was able to – he – because he just walked out in front of it and judging from the reaction and doing the speed limit, and being able to swerve, even just slightly away, to me that’s my analysis. I – I don’t have those – I can’t analyse speed off the top of my head. I don’t’ have a radar gun in that moment but in that moment you could see he wasn’t speeding. …
MR MOREL: Yes, so judging from his reaction and the way the incident happened, he wasn’t excessively flying down the road from what I could see because I could see it in the corner of my – where I was sitting at a perfect view of the actual incident when it happened. It didn’t look like there was excess speed. If there was excess speed in this incident there was no way he would have been able to have been able to react and even avoid the
16 Transcript dated 22 January 2025 page 26 line 5 – 15; page 29 line 4 - 12 17 Transcript dated 22 January 2025 page 36 lines 17 - 35 18 Transcript dated 22 January 2025 page 37 lines 43 - 46 situation … he obviously hit him in that moment, but he would have been 19 much worse …
INTERPRETER FOR MR YE: … Mr Ralston said he reduced his speed from 70 kilometres per hour to 60 kilometres per hour … so how come you are so sure that, or the rider, so he didn’t have reasonable time to avoid that accident occurred
MR MOREL: … Honestly the only reason why he didn’t have enough time because it’s due to the time that Mr Ye stood out on the road. So because Mr Ye just casually walked out on to the road, and the location of the scooter rider, Mr Jason, there’s no way that you can effectively, like, avoid that situation, and his speed limit, like, if he – like, he said he did drop from 70 to 60, you’re talking about millisecond reaction time, so there’s no way – if he had stepped out way ahead of time, like a minute or two, Mr Jason would have had time to avoid that situation, but because it was probably within less than a minute, the timeframe of him just walking out and not actually looking, there’s no way that situation could have been avoided 20 unfortunately. …
MR MOREL: … what I saw personally, so the reason why the other pedestrian walked before is because they checked both sides and they checked that there was a clear – there was no cars coming at that point. So then after he had passed, maybe Mr – I didn’t see Mr Ye look. It looked like Mr Ye just walked forward and didn’t check, and what I saw was, when he got hit with the scooter in that pedestrian pathway, the light was red, and my traffic light, my traffic light was red, so the pedestrian crossing was red for him. So there’s no way, that’s why when Mr Jason hit him the light was green … where he was hit, it was very close to where you’d cross from the middle of the intersection where he just walked out. He – he’d crossed the other side fine because he walked across that line because there was no cars coming, but in the other side, where he was supposed to wait, he didn’t 21 wait and he just walked in front. That’s why there was an impact there. …
INTEPRETER FOR MR YE: … how come you can so sure the light, the traffic lights was green or red?
MR MOREL: … I was the first car at that intersection and I was the driver, so I could see crystal clear in my view where Mr Ye was crossing, and also my traffic light colour as well as his traffic at the pedestrian crossing, so I was keeping an eye on the situation. That’s what you have to do is be aware of the situation so I was very adamant of visually assessing the situation. …
INTERPRETER FOR MR YE: … So according to our common sense, so you just can see your traffic light and the – my traffic light. You can’t see the – Mr Jason’s traffic light.
19 Transcript dated 22 January 2025 page 38 lines 25 - 45 20 Transcript dated 22 January 2025 page 42 lines 1 - 19 21 Transcript 22 January 2025 page 43 lines 28 - 43 MR MOREL: From a common sense perspective, I can’t see Mr Jason’s traffic light, but if my light is red, it means that Mr Jason’s light is green. It’s just basic principle, and the pedestrian crossing, I can actually see the pedestrian crossing light from my – where I was sitting at the lights. I could see the pedestrian crossing light. It was clearly red. It wasn’t like, like, wasn’t blinking red. It was clearly red. It wasn’t green ready to be crossed. …
INTERPRETER FOR MR YE: … so because I was in the middle way to compete crossing the road, so if at that moment when the traffic light was turning red from green, so according to memory, so is it possible at that moment, the short moment when the traffic light was turning from green to red, so on my side it’s red, on Jason’s side it’s red as well, so on the – at the short moment?
MR MOREL: … if you have already jaywalked across on the first side when it’s red, its going to be red the whole way. So you’ve already started the journey the wrong way and that’s the problem. So if the light was green for Mr Ye from the start, he would have had a perfect green journey all the way. 22 That was the problem. It was red from the start.
MR RALSTON: My first question is, did you know either myself or Mr Ye before the accident?
MR MOREL No, I did not.
MR RALSTON … when you were preparing your witness statement, had you been provided the witness statement of either myself or Mr Ye before 23 you had filled that in?
MR MOREL … No. That’s all filled in by me. … No, I just wrote that free- 24 handedly from what I recalled of the situation.
Relevant legislation and legal principles in relation to the grounds of appeal Overview of the law of negligence in the ACT
The Civil Law (Wrongs) Act 2002 (CLWA) applies to all claims for harm 25 resulting from negligence in the ACT.
Relevant provisions of the CLWA are summarised below.
26 (a) Claims include claims in tort and negligence.
22 Transcript dated 22 January 2025 page 44 line 16 – page 45 23 Transcript 22 January 2025 page 45 24 Transcript 22 January 2025 page 46 25 Civil Law (Wrongs) Act 2002 (CLWA) s 41 26 CLWA s 41 27 (b) Harm includes property damage.
28 (c) Negligence means failure to exercise reasonable care and skill.
42 Standard of care … The standard of care which a respondent must meet is the standard of care a reasonable person in the respondent’s position who was in possession of all the information that the respondent had or ought to have had at the time of the incident at the time of the incident out of which the 29 harm arose. 43 Precautions against risk – general principles (1) A person is not negligent in failing to take precautions against a risk of harm unless — (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known0; (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s 30 position would have taken those precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm the tribunal must consider the following (among other things) – (a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; 31 (d) the social utility of the activity creating the risk of harm. 44 Precautions against risk – other principles In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
27 CLWA s 40 28 CLWA s 40 29 CLWA s 42 30 CLWA s 43(1) 31 CLWA s 43(2) (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an 32 admission of liability in relation to the risk. 45 Causation (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation'); (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability). … (3) In deciding the scope of liability, the tribunal must consider (among other relevant things) whether or not, and why, responsibility for the 33 harm should be imposed on the negligent party. 46 Burden of proof In deciding liability for negligence, the applicant always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue 34 of causation. 47 Contributory negligence can defeat claim In deciding the extent of a reduction of damages because of contributory negligence, the tribunal may decide on a reduction of 100% if the tribunal considers it is just and equitable to do so, with the result that the claim for 35 damages is defeated.
Ye must produce evidence sufficient to satisfy the tribunal of all the elements of
the claim, including the respondent had a duty of care; the respondent failed to
meet the relevant standard of care; and the said negligence caused the harm.
consider whether there should be any reduction for contributory negligence.
The onus and burden of proof in tribunal proceedings
section 8 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
32 CLWA s 44 33 CLWA s 45 34 CLWA s 46 35 CLWA s 47 The tribunal may inform itself in any way that it considers appropriate in the
circumstances of the matter. The tribunal may accept evidence that would not be
admissible under the provisions of the Evidence Act 2011 or evidence that has not
been tested and subject to cross-examination. Nevertheless, given the serious
nature of these proceedings, and the serious issues in dispute, it is appropriate that
the tribunal carefully scrutinise the information provided to it and ensure that only
information that has probative value is taken into account.
standard, that is, the balance of probabilities. The standard may also be expressed
as “more likely than not” or “more probable than not”. The terms “likely”,
“balance of probabilities” and “probable” are not defined in the ACAT Act or the
Legislation Act 2001. The words have their everyday meaning.
(also expressed as a “reasonable satisfaction” or “comfortable satisfaction”) of
the occurrence or existence of the fact in issue. Where the subject matter is
serious, the tribunal will not make findings without clear and convincing
evidence. And, where the tribunal is satisfied that one party’s account is
inherently probable in all the circumstances of the case, the tribunal will not make
findings that are inconsistent with that party’s account without clear and 36 convincing evidence.
proving his claim. Mr Ye was required to produce evidence to the tribunal
sufficient to establish each element of his claim, on the balance of probabilities.
claim, an applicant has failed to prove their claim. If the tribunal is unsure where
the truth lies, or if the case is evenly balanced (50/50), the applicant has failed to
prove their claim.
36 Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]
necessarily mean that the tribunal has rejected the evidence of that party or that
the tribunal does not believe the evidence of the party. It means no more than that
the evidence is not sufficient to establish what is needed to prove the case.
Legal principles in relation to findings on credibility and reliability of witnesses
based primarily on the Original Tribunal’s assessment of the credit of the
witnesses is well settled.
37
There are well settled principles that govern how an appeal tribunal should proceed in circumstances such as this. As the authors of Cross on Evidence observe, quoting from numerous reasons for judgments: The appellate court will naturally be loath to disturb a finding of fact by the trial judge who has had the advantage of observing the demeanour of the witnesses, “their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial.” ... The principle applies particularly where “the interests of individuals are divergent and conflicting, where personal feeling is acute, and where ... so much depends upon the character, personal motives and interests of individual persons.” “Trial by transcript can seldom be an adequate representation of an oral trial...” Reading the transcript alone is not a substitute for seeing and hearing the witness, “since the transcript eliminates clues to voracity that are supplied by tone of voice, hesitation, body language, and other non-verbal expression.” ... It does not follow that because the trial judge did not refer expressly to demeanour and credibility that they played no part in the judge’s conclusions. Second, as the authors of Cross on Evidence also state by reference to judgments: Errors of law or fact by the court below on other matters do not necessarily vitiate its conclusion on credibility. Hence it is unusual to set aside ... the findings of a trial judge based on the credibility of a witness unless it can be concluded that the trial judge failed to use or palpably misused the advantage he or she had of seeing and hearing the witness, or that the trial judge relied on evidence which was inconsistent with facts incontrovertibly established by the evidence, or that the trial judge acted on evidence which was glaringly improbable, or that the trial judge fell into some error of principle, or that the trial judge mistook or misapprehended the facts, or if the effect of the overall evidence was such that it was not reasonably open
37 Sarbandi v Sharif [2017] ACAT 57 at [67]-[68] to make the findings. However, it is possible to set aside ... credibility-based findings in other circumstances, because “no short exhaustive formula” of the above kinds can meet every case. The court occasionally takes the view that the judge was wrong to give credence to a particular witness, or to find a witness unreliable, in either case because “a whole body of evidence points inescapably to a conclusion different from that reached by the judge at first instance, where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal.
Consideration of the issues raised by the appellant
Ralston provided submissions in reply on 4 June 2025. Mr Ye provided further
submissions on 11 June 2025. The Appeal Tribunal will consider the issues
below.
Issue 1. Whether the tribunal erred in finding that the applicant “suddenly ran into the road” without sufficient objective or corroborative evidence, in light of contradictions between the respondent’s oral evidence and his written AFP crash report, and the absence of CCTV footage or independent eyewitness testimony. Issue 5. Whether the tribunal gave disproportionate weight to the respondent’s oral testimony, contrary to the principles in Briginshaw v Briginshaw and failed to apply evidentiary scrutiny in the absence of objective proof.
38
… considering the evidence of the applicant, and also the evidence of the respondent and Mr Morel, I find it more likely than not that the accident took place in the way as described by Mr Ralston … and Mr Morel, which is to say that I find it more likely, on the basis of the evidence, that the applicant stepped out suddenly in front of Mr Ralston in a manner that made it impossible for him to avoid the accident. … [Mr Ralston] was facing a green light.
rather “stepped out suddenly” onto the road. The important finding is that Mr Ye
moved suddenly onto the road.
38 Transcript of hearing dated 5 March 2025 page 22 lines 1 - 23
Original Tribunal, including:
(a) Statements by Mr Ralston in his AFP report, communications with the
Youth Law Centre, witness statement, and oral evidence.
(b) Statements by Mr Morel in his witness statement, and oral evidence.
Relevant extracts from these statements are detailed above.
(a) When he commenced to cross the road, the pedestrian signal was green.
(b) While he was crossing the road, the pedestrian signal changed to flashing
yellow or red.
(c) Immediately before the collision, he was lawfully crossing the road, he
was walking in a controlled, safe manner.
(d) He was walking close behind, or in tandem with Mr Naman.
including his oral evidence, and his statements made before the hearing, including
his statement to the NRMA investigator. Relevant extracts from these statements
are detailed above. Mr Ye said that he looked both ways before crossing. Notably,
Mr Ye said that he did not see the motorcycle before the collision, and that he
first became aware of the motorcycle when he heard “a really loud engine 39 noise”.
motor vehicle collision in which the applicant also suffered serious personal
injuries. In all the circumstances, this is a serious matter.
evidence, and gave proper consideration to the evidence and its findings of fact.
The Appeal Tribunal is satisfied that it was reasonably open to the Original
Tribunal to accept the evidence of Mr Ralston and Mr Morel. The Original
39 SMS from Mr Ye to Mr Naman sent 7 May 2023 at 1049am; words attributed to applicant by Youth Law Centre; Statement by Mr Ye to NRMA Investigator dated 27 July 2023 Tribunal had the benefit of observing each of the witnesses and hearing what they
had to say. The Original Tribunal accepted the account of events given by Mr
Ralston and Mr Morel. At the appeal, there was no compelling evidence to
demonstrate that the decision by the Original Tribunal to accept the account of
events given by Mr Ralston and Mr Morel was wrong.
Tribunal make the relevant findings of fact on the evidence. At the appeal, there
was no compelling evidence to demonstrate that the findings made by the Original
Tribunal were wrong. The Original Tribunal expressed the findings with clarity
and certainty, demonstrating that the Original Tribunal was comfortably satisfied
on the balance of probabilities as to the findings of fact.
should be loath to intervene to disturb the findings of fact by the Original
Tribunal.
The issue of running or walking
not running – at the time of the collision.
I also submit that the nature of the applicant’s injuries match those of someone who was running and had left foot outstretched. The only injuries the applicant have claimed in their witness statement is “As a result of the impact, my lower left leg was hit by the motor scooter. I fell and I sustained grazes on my body, left knee and elbow”. Had the applicant been walking, his left leg would have been significantly closer to his body. As such a scooter that impacted his lower left leg would also have collided with the rest of his body and caused injuries from my scooter (rather than the grazes the applicant receive due to his fall). In my witness statement and other statements made to the applicant, I have maintained that the collision with the applicant’s left leg occurred because it was outstretched due to him running, and as such away from the rest of his body as I swerved left to try and avoid the accident. My impact with his ankle is what cause the
40 Filed 7 January 2025 (25 pages) at page 20 applicant to be knocked to the ground on the road, not any impact or damage to his body.
his AFP report, as follows:
My motorcycle ran over his most forward foot and may have hit his arm.
movement based solely on the location of injury … is flawed … The respondent’s
later assertions amount to post hoc rationalisation and should not be afforded the 41 same probative value as contemporaneous reports”.
probative value. Mr Ralston is speculating. There are too many variables.
applicant and the motorcycle involved both his left leg and his left arm, this
tribunal cannot speculate in relation to the applicant’s position or movement
immediately before the contact. Again, there are too many variables.
The absence of Mr Naman
did not believe his evidence would be relevant, because the collision occurred
behind him. Also, the applicant did not have sufficient personal contact details
to issue a subpoena to Mr Naman.
think Mr Naman could have assisted me in any event”.
on the relevant and probative evidence that is produced by the parties at the
hearing. The tribunal cannot speculate on evidence that was not produced at the
41 Appellant’s submissions dated 11 June 2025 at page 6 hearing. The tribunal cannot order a party to produce evidence that might assist
a party’s case.
The absence of CCTV recording
It appears that the government cameras send the video capture to a control centre,
and the video is monitored in real time. However, the video capture is not
recorded. The applicant argues that, if CCTV recording was available, this may
have supported his case.
relevant and probative evidence that is produced by the parties at the hearing. The
tribunal cannot speculate on evidence that was not produced at the hearing.
Absence of “independent” eyewitness testimony
Mr Ralston, and Mr Morel.
witness statement, and that he prepared his witness statement independently of
the parties. There is no evidence to the contrary.
influenced by Mr Ralston. However, suspicion is not evidence. The appellant has
not demonstrated error.
The respondent’s evasive action
to his left. This action was taken in the urgency of the moment, and without the
benefit of time to fully consider the various available options.
have been avoided, or might have caused less serious injury to himself. There is no expert evidence to support this argument. In any event, the correct test is
whether the respondent acted in accordance with reasonable care.
suddenly in front of Mr Ralston in a manner that made it impossible for him to
avoid the accident”. The appellant has not demonstrated that the respondent failed
to act in accordance with reasonable care.
Issue 2. Whether the tribunal failed to apply the correct legal standard of duty of care under the Civil Law (Wrongs) Act 2002 particularly sections 42, 43 and 110, by not adequately assessing the respondent’s responsibility to take reasonable precautions when approaching a pedestrian crossing.
Mr Ralston was in control of a dangerous vehicle. Mr Ye was a pedestrian, and
more vulnerable in the event of a collision. They were both road users, and they
both had a duty of care to other road users.
The standard of care and skill which the law must demand from the driver of a motor car today is a very high one indeed. A motor car has become a lethal weapon. It may be that pedestrians very often feel that it is so. We know that the motor car kills thousands of pedestrians, but I have never heard of a single pedestrian, or of a thousand pedestrians combined, who killed one motor car.
The reasonable person would accept that it is not the duty of a driver to drive such that there is no foreseeable risk of injury to others. However, it does not follow that risks may be ignored. One must bear in mind the extent of the damage that may be done by a driver to a pedestrian, the degree of likelihood that a pedestrian will suddenly come into the path of an oncoming vehicle, the consequent extent of the precautions that a driver must take against that eventuality, and the extent of what a driver is able to do when confronted with such danger. Pedestrians act carelessly with sufficient frequency that a prudent person would take account of the possibility. Careless behaviour by pedestrians occurs often enough for a prudent driver to foresee it and to take it into account.
… I do not accept that, in the circumstances facing him, that Mr Ralston should have slowed down further, or there was any need for him to do so. There was no reason to expect that another pedestrian would come out in front of him when he was facing a green light. … the danger of the pedestrian being on the road had passed and there was no reason for him to slow down further … I don’t think that, in the circumstances, reasonable care required further slowing down in a way that would have avoided the accident. … absolutely Mr Ralston owed a duty of care to all other users of the road, but I am not satisfied that there was a breach of that duty to Mr Ye …
respondent to the possibility of other pedestrians in the area, and that the
respondent should have slowed the motorcycle accordingly. The appellant
submits that he was walking close to, or in tandem, with Mr Namen. The appellant
suspects that the motorcycle was travelling above the speed limit.
collision. Mr Naman crossing the road was a relevant potential danger to the
respondent. The respondent slowed his motorcycle from about 70 kph to 60 kph.
Mr Naman crossed safely before the motorcycle arrived at the intersection. Mr
Ralston was briefly distracted by Mr Naman. This distraction appears to be a
reasonable reaction to the circumstances.
presence of Mr Naman. The Original Tribunal found that the respondent cannot
completely discard the fact that there may be other pedestrians interacting with
the road.
front of the motorcycle. The Original Tribunal found no negligence on the part
of the respondent in the manner of his riding in the circumstances of the collision.
Tribunal make the above determination on liability. The Original Tribunal
42 Transcript of hearing dated 5 March 2025, page 22 line 19 – page 23 line 13 expressed the findings with clarity and certainty, demonstrating that the Original
Tribunal was comfortably satisfied on the balance of probabilities as to the
findings of fact.
of the Original Tribunal on liability was wrong. The Appeal Tribunal is not
satisfied, in the present case, that it should interfere with the Original Tribunal’s
decision in relation to liability.
Issue 3 Whether the tribunal failed to ensure procedural fairness (natural justice) in breach of section 7 of the ACT Civil and Administrative Tribunal Act 2008 and the common law, by allowing flawed interpretation services during the 22 January 2025 hearing to materially impair the applicant’s ability to understand and participate.
with many different ancestries, cultures, values, religions, and languages.
The interpreter was a certified by the National Accreditation Authority for
Translators and Interpreters as a “Certified Provisional Interpreter”.
INTERPRETER Mr Ye said so then I, basically I can understand so if I 43 don’t, if I can’t, I will ask for help. …
On the first day of hearing, at times, the audio visual link between the interpreter 44 and the tribunal was poor quality. On two occasions, the audio-visual link was 45 disconnected. There was some delay for the interpreter to re-connect.
At the conclusion of the first day of hearing:
MR YE: … Can I file a complaint about the interpreter actually, based on my understanding he cannot, like, exactly properly interpret what I am saying and plus she – her internet or something make the whole process is really difficult to proceeding….
43 Transcript of hearing dated 22 January 2025 page 4 lines 27 - 28 44 Transcript of hearing dated 22 January 2025 page 36 lines 1 - 8 45 Transcript of hearing dated 22 January 2025 pages 15, 32 MEMBER: What I could possibly do is adjourn this matter to another day and to arrange another interpreter, but I don’t want to repeat everything we’ve done today, right, unless ... you tell me that there really is something seriously wrong with what she’s done …
46 MR YE: So far, yes, please continue.
I am writing to formally request access to the audio recording of the hearing held on 22 January 2025 in relation to my matter. …
The tribunal does not have an audio recording of the transcript. If you require a copy of the transcript you will need to order it through our transcript providers. More information about ordering transcripts can be found at [LINK].
transcript providers.
Mr Ye firmly believes this caused him disadvantage. Belief and suspicion are not
evidence.
error or omission in interpretation. This ground of appeal is dismissed.
Issue 4. Whether the tribunal failed to consider the applicant’s vulnerability as a self-represented, not native English-speaking international student with limited access to legal aid and medical mobility and whether that imbalance affected the fairness of the hearing.
The nature of the proceedings before the Original Tribunal
States, Canada and many other common law countries use the adversarial system.
courts and tribunals rely on the parties to present all material that will be relevant
or necessary to enable the courts or tribunals to make its decision.
46 Transcript of hearing dated 22 January 2025, page 49
(a) define the scope of their claim/defence;
(b) present necessary evidence in order for the tribunal to make a findings of fact;
(c) identify the issues and the relevant law; and
(d) make submissions as to the relevant facts and law, as to the determination of the disputed facts, and as to the determination of the dispute.
investigation, or construct its own version of events.
the inquisitorial system, the judge has a much more active role in directing the
case and often makes inquiries, calls and examines witnesses and generally
determines the matters that the court will decide.
The parties will have different resources, and different skills and knowledge. The
legal representatives (if any) will have different skills and knowledge. The
“playing field” of litigation is never truly level.
in our society. The rule of law has as its foundation openness and equality before
the law, and the obligation on courts and tribunals to treat all parties fairly
regardless of their various differences (for example, gender, ethnicity, disability,
sexuality, age, socio-economic background, literacy level, and religious, cultural
and language background).
47
The tribunal’s duty to assist self-represented parties
represented parties was considered by the NCAT Appeal Panel in Schwedler v
47 ACT Civil and Administrative Tribunal Act 2008 s 7 Secretary, Department of Health [2026] NSWCATAP 21. The Appeal Panel said
at [59]:
The extent of the duty on the Tribunal to assist self-represented parties was recently considered in McNeill v Clarence Valley Council [2025] NSWCATAP 184 (McNeill) at [185]-[189] in light of several judgments of the New South Wales Court of Appeal: [185] We have already noted the appellant’s status as a self-represented party before the Tribunal at first instance. This raises the question of the extent of the duty on NCAT to assist a self-represented party in administrative proceedings such as those conducted in the Tribunal at first instance.
In Chalik v Chalik [2025] NSWCA 136 (Chalik) at [67]-[72], the Court of Appeal recently considered the extent of the duty on a court to assist a self-represented party in civil proceedings. The Court (Bell CJ, Payne JA, Free JA) rejected the proposition stated in an earlier Court of Appeal decision in MHT v State of New South Wales [2025] NSWCA 122, that a court has an “obligation to ensure” that an unrepresented party does not, “because of lack of legal skill, fail to claim rights or put forward legal arguments”. That statement “significantly overstates a court’s responsibility to an unrepresented litigant and is far too absolute in its use of the expression “an obligation to ensure ...”: Chalik at [68].
[186] In Chalik, the Court reviewed previous decisions of intermediate appellate courts which have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: at [69].
[187] In Bauskis v Liew [2013] NSWCA 297 at [69], in which Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant “does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant”. Further, in Cicek v Estate of late Solomon [2014] NSWCA 278 at [130], Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:
“[130]...suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.”
[188] In Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21], McCallum JA (Basten and Leeming JJA agreeing) observed that in some circumstances it would be appropriate for courts to give the correct legal construction to an arguable point expressed poorly by a self-represented litigant. However, courts are not required to analyse lengthy, unstructured assertions and misconceptions to ensure that a self-represented litigant has not missed an arguable point.
[189] We see no reason why similar principles would not apply in relation to NCAT proceedings, both administrative and civil proceedings. The principles set out in the NCAT Act at s 38(5), and s 38(2), should be understood in light of the principles in the case law referred to above.
proceedings, including the present proceedings before the Original Tribunal and
the Appeal Tribunal.
disadvantages experienced by Mr Ye in obtaining evidence and participating in
the proceedings.
case.
and equally. In these proceedings, both parties were self-represented, and the
tribunal’s obligation to assist self-represented parties applied to both parties.
ORDER
……………………………….. Presidential Member T Warwick Dates of hearing: 20 and 24 June 2025
Applicant: In Person
Respondent: In Person
YE
RALSTON (Appeal)